Mining case needs work, judge says

Reports of a settlement in the mountaintop removal mining case have been greatly exaggerated, a federal judge said Friday.

But U.S. District Judge Charles H. Haden II still wants to hear what the public thinks about an agreement proposed in the landmark lawsuit.

People will now have 45 days to file comments with the court or the state Division of Environmental Protection about the proposal. Haden promised to review all comments.

The judge also rebuffed challenges to his injunction blocking work on what would be the state's largest mountaintop removal mine at Spruce Fork in Logan County.

During the brief morning hearing, Haden stressed that the proposal, as he viewed it, needs a lot of work.

"I suggest there is less here than meets the eye," Haden said. "Things have not been resolved, and they are a long way away from getting there."

Under the proposal, DEP would sign a consent decree reached between the agency and the coalfield residents and environmentalists who filed the lawsuit.

The decree would require DEP to more strictly follow existing laws governing mountaintop removal mining, with the agency answerable to Haden. New laws would also be drafted to address concerns about the mining method from the coalfield residents and environmentalists who filed the lawsuit.

While encouraging the parties to continue working toward a resolution, Haden said the details of the agreement are sketchy.

"These efforts are not anywhere near complete," Haden said. "It's a long way before a proposed settlement and a resolution of a global issue that requires legislation and a whole host of other things."

Commenting after the hearing, both sides involved in the proposal welcomed Haden's stance.

"The proposed consent decree deals with some very technical issues and is a product of months of negotiations," said Joe Lovett, a lawyer for the plaintiffs. "It is important that the court and the public have ample opportunity to review it before it is finalized."

"We have a lot of drafting to do for these regulations," said Brian Glasser, a lawyer for DEP. "But I think that after it's all worked out, it will be accepted."

"The court was not asked to approve the proposed settlement today. The law requires public notice and comment before a consent decree is approved," said Patrick McGinley, a law professor and lawyer for the plaintiffs. "A federal court has an obligation to see that any such settlement is in the public interest."

DEP had asked for a 30-day public comment period, citing state laws which require such input. Haden granted that request, while extending the period to 45 days.

"The public interest in this is so strong, represented by the economic and environmental concerns involved," Haden said. "The public ought to be brought up to speed on this, and the public ought to be given the opportunity to comment meaningfully about it."

Haden also warned against any proposal leaving the case in the same posture as that of the Recht decision. A 1982 state court ruling, the Recht decision was meant to equalize public school funding. Despite the court order, the school funding issue remains contentious and unresolved.

The proposal does not specifically target the Spruce Fork site, mined for Arch Coal Inc. by a subsidiary, Hobet Mining Inc. Neither is party to the consent decree, though lawyers for both told Haden they do not oppose the proposal.

"So that there is no doubt, we support the entry of the consent decree," said Roger Wolfe, a lawyer for Arch Coal.

But Wolfe also said that Arch Coal still believes a federal permit it received for the site is valid. Haden's injunction targets that permit. The agency that granted it, the U.S. Army Corps of Engineers, has since reversed its approval of that permit.

Wolfe also cited Arch's plans to seek a different permit from the corps to allow mountaintop mining at Spruce Fork. Wolfe's remarks prompted Haden to repeatedly remind the lawyer of the scope of his injunction.

"You can prepare it, [the corps] can do what it's going to do," Haden said. "But there's an injunction in place which enjoins the issuance of a permit for the Spruce Fork operations."